[Introduced February 10, 2012; referred to the Committee on
Natural Resources; and then to the Committee on the Judiciary.]

____________

A BILL to amend and reenact §22-11-7b of the Code of West Virginia,
1931, as amended, relating to establishing a procedure to
determine compliance with the biologic component of the
narrative water quality standard.

Be it enacted by the Legislature of West Virginia:

That §22-11-7b of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:

ARTICLE 11. WATER POLLUTION CONTROL ACT.

§22-11-7b. Water quality standards; implementation of
antidegradation procedures; procedure to
determine comp1iance with the biologic component
of the narrative water quality standard.

(a) All authority to promulgate rules and implement water
quality standards vested in the Environmental Quality Board is
hereby transferred from the Environmental Quality Board to the
Secretary of the Department of Environmental Protection as of the
effective date of the amendment and reenactment of this section
during the 2005 regular session of the Legislature: Provided, That
the legislative rule containing the state’s water quality standards
shall remain in force and effect as if promulgated by the
Department of Environmental Protection until the secretary amends
the rule in accordance with the provisions of article three,
chapter twenty-nine-a of this code. Any proceedings, including
notices of proposed rulemaking pending before the Environmental
Quality Board, and any other functions, actions or authority
transferred to the secretary shall continue in effect as actions of
the secretary.

(b) All meetings with the secretary or any employee of the
department and any interested party which are convened for the
purpose of making a decision or deliberating toward a decision as
to the form and substance of the rule governing water quality
standards or variances thereto shall be held in accordance with the
provisions of article nine-a, chapter six of this code. When the
secretary is considering the form and substance of the rule
governing water quality standards, the following are not meetings
pursuant to article nine-a, chapter six of this code: (i)
Consultations between the department’s employees or its
consultants, contractors or agents; (ii) consultations with other
state or federal agencies and the department’s employees or its
consultants, contractors or agents; or (iii) consultations between
the secretary, the department’s employees or its consultants,
contractors or agents with any interested party for the purpose of
collecting facts and explaining state and federal requirements
relating to a site specific change or variance.

(c) In order to carry out the purposes of this chapter, the
secretary shall promulgate legislative rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code
setting standards of water quality applicable to both the surface
waters and groundwaters of this state. Standards of quality with
respect to surface waters shall protect the public health and
welfare, wildlife, fish and aquatic life and the present and
prospective future uses of the water for domestic, agricultural,
industrial, recreational, scenic and other legitimate beneficial
uses thereof. The water quality standards of the secretary may not
specify the design of equipment, type of construction or particular
method which a person shall use to reduce the discharge of a
pollutant.

(d) The secretary shall establish the antidegradation
implementation procedures as required by 40 C.F.R. 131.12(a) which
apply to regulated activities that have the potential to affect
water quality. The secretary shall propose for legislative
approval, pursuant to article three, chapter twenty-nine-a of the
code, legislative rules to establish implementation procedures
which include specifics of the review depending upon the existing
uses of the water body segment that would be affected, the level of
protection or “tier” assigned to the applicable water body segment,
the nature of the activity and the extent to which existing water
quality would be degraded. Any final classification determination
of a water as a Tier 2.5 water (Water of Special Concern) does not
become effective until that determination is approved by the
Legislature through the legislative rule-making process as provided
for in article three, chapter twenty-nine-a of the code.

(e) All remining variances shall be applied for and considered
by the secretary and any variance granted shall be consistent with
33 U.S.C. Section 1311(p) of the Federal Water Control Act. At a
minimum, when considering an application for a remining variance
the secretary shall consider the data and information submitted by
the applicant for the variance; and comments received at a public
comment period and public hearing. The secretary may not grant a
variance without requiring the applicant to improve the instream
water quality as much as is reasonably possible by applying best
available technology economically achievable using best
professional judgment. Any such requirement will be included as a
permit condition. The secretary may not grant a variance without
a demonstration by the applicant that the coal remining operation
will result in the potential for improved instream water quality as
a result of the remining operation. The secretary may not grant a
variance where he or she determines that degradation of the
instream water quality will result from the remining operation.

(f) (1) It is declared to be the public policy of this state
that any interpretation and implementation of West Virginia's
narrative water quality standards, which have been authorized by
the Legislature in a promulgated administrative rule, is the
responsibility of the department. It is further declared to be the
public policy of this state that the department's interpretation of
West Virginia's narrative water quality standards must fully comply
with the statement of public policy set forth in section two of
this article.

(2) Measuring compliance with the biologic component of West

Virginia's narrative water quality standard requires evaluation of
the holistic health of the aquatic ecosystem and a determination
that the stream: (i) Supports a balanced aquatic community that is
diverse in species composition; (ii) contains appropriate trophic
levels of fish, in streams that have flows sufficient to support
fish populations; and (iii) the aquatic community is composed of
benthic invertebrate assemblages sufficient to perform the
biological functions necessary to support fish communities within
the assessed reach, or, if the assessed reach has insufficient
flows to support a fish community, in those downstream reaches
where fish are present.

(3) The secretary shall propose rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code that are necessary to implement the
provisions of this section.

NOTE: The purpose of this bill is to establish a procedure by
which the Department of Environmental Protection is to measure
compliance with the biologic component of the narrative water
quality standard.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.